Mandatory ACAS Early Conciliation - Will it work?

Early conciliation via ACAS will be mandatory from 6 May
2014. The aim of the mandatory early conciliation procedure
is to try to avoid Tribunal proceedings by settling
claims before they are commenced.

The new mandatory procedure will mean that those
wishing to bring an Employment Tribunal claim (although there are
some exceptions) must have first contacted ACAS. A
prospective claimant will be barred from bringing their claim
unless they have received an Early Conciliation (EC) certificate
issued by ACAS confirming that they have complied with the
early conciliation procedure. This will be detrimental for
claimants who are not aware of the new procedure and who submit a
claim without the necessary EC certificate on or shortly before the
statutory deadline.

For claimants who follow the procedure correctly, one of the
benefits - apart from the obvious fact that they must do so in
order to submit their claim - is the extension of time they will
have to submit their claim. The time limit for bringing
a claim can be extended by up to one calendar month and then a
further two weeks if both parties agree to the
extension. However, the time limit is only extended
by the amount of time that early conciliation continues, and
therefore employers will be able to reduce the extended time
available to prospective claimants by refusing early
conciliation. This is so unless the normal time limit
for bringing a claim will fall within the period between when
the prospective claimant contacts ACAS and the EC certificate is
issued in which case the time limit will automatically be
extended by one month.

It is possible that some employers may wish to take advantage of
early conciliation to obtain further details of the potential claim
and, depending on its merits, to seek to settle this prior to a
claim being issued. Employers may also commence early
conciliation themselves, although this approach should be used with
caution as it could suggest to a potential claimant that their
claim has merit.

Unfortunately there are some pitfalls with the new rules.
The details that must be provided by the prospective claimant are
minimal and there is no requirement to provide details of the
potential claim. There is also no requirement on a
prospective claimant to participate in conciliation, only to have
contacted ACAS.

It is also worth remembering that ACAS cannot determine the
merits of any claim and are required to proceed even where they
consider there is no justifiable claim. Employers should
therefore be careful when considering settling claims that may have
little or no merit or value. Employers should also ensure
that any agreement reached is properly worded to help to
avoid the risk of a separate claim being submitted later.

How the new procedure will work in practice and whether it will
achieve its goals is uncertain at this stage. What is certain
is that the new procedure will be used by the canny employee - and
could also be used by the canny employer - to their own
advantage. The question of 'will it work?' will therefore
depend on who is answering the question.